Richard E. Levy, J.
One consistent trend since the time of the founding has been the expansion of presidential authority. In recent years, this trend has accelerated at an exponential rate, propelled by the war on terror and the dysfunction of our hyperpartisan Congress.
Although these events take place on a national stage, they have important implications for the bench and bar here in the state of Kansas. The operations of the national government inherently and necessarily affect all of its constituent parts, including Kansas. Of more immediate concern, the use of presidential power to implement particular policies, such as tariffs, significantly affect many people here in the state. More broadly, the hyperpartisanship fueling the growth of presidential power operates here in Kansas as well.
The general point of this article is that, although their policy goals were different, both Presidents Obama and Trump asserted especially broad presidential authority in a number of areas, including the war on terror, foreign relations, immigration policy, control of officers, and executive privileges and immunities. The congressional response to these assertions has been political and partisan, rather than institutional. That is, members of Congress seem perfectly willing to accept and even applaud broad assertions of presidential power when it suits their partisan policy agenda. The judicial response has also been inconsistent. Although some cases invalidate presidential actions as going too far, many others reject challenges on procedural grounds or affirm broad presidential authority on the merits.
II. General Principles
Under basic separation of powers principles, Congress “makes the law,” the President and executive officers “execute the law,” and the judiciary “interprets the law.” The legislative power to make the law is the antecedent power to adopt binding rules of general applicability that determine the ends and means of public policy. The executive power to implement the laws derives primarily from the laws that Congress enacts, but the President also has substantial independent authority in the field of foreign relations. The judicial power to interpret the laws arises in connection with the courts’ authority to resolve cases and controversies within their jurisdiction.
I vests the legislative power in Congress, the most
politically accountable branch, which must meet the
requirements of bicameralism and presentment to enact
II vests the executive power in the President, elected by a
national constituency, who has the duty to “take care
that the laws be faithfully executed.” The
President’s power to act “must stem either from
an act of Congress or from the Constitution
III vests the judicial power in the Supreme Court and such
lower courts as Congress may establish, assuring their
independence through life tenure and salary
Although basic separation of powers principles are easy to summarize, applying them in practice to modern government presents an enormous number of difficult questions. In resolving these questions, the Court’s analytical approach has vacillated between formalism and functionalism. Formalism requires strict separation of powers, with the analysis centered on the proper characterization of a particular action as legislative, executive, or judicial to determine whether the proper branch exercised the power in accordance with constitutional requirements.13 When the Court uses a formalistic approach, it usually invalidates a law. Functionalism starts with the premise that legislative, executive, and judicial powers overlap, with the analysis centered on whether a particular institutional structure preserves the core functions of each branch and the essential balance of power among the branches.14 When the Court uses a functional approach, it almost always upholds a law.
Since the New Deal, the functional approach has dominated, facilitating the rise of the modern administrative state, in which administrative agencies have significant “quasi-legislative” and “quasi-judicial” policy authority. The authority to appoint, oversee, and remove officers in those agencies affords a president substantial control over public policy—as reflected in dramatic policy shifts when President Obama replaced President Bush and when President Trump replaced President Obama. At the same time, the president’s independent authority as Commander in Chief and chief representative in the conduct of foreign relations has also grown substantially over time, aided by congressional acquiescence and the judiciary’s reluctance to intervene in such matters.
The scope of presidential authority depends on how it interacts with the actions of Congress, as reflected in Justice Jackson’s influential framework from The Steel Seizure Case.15 When the President acts pursuant to congressional authorization, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” When Congress has neither granted nor denied authority, “he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Finally, when the President acts against the “will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”
III. Use of Force in the War on Terror
The Constitution divides power over the use of military force between Congress and the President. Although Congress retains the power to declare war, controls funding for the military, and has regulatory authority over the armed forces, in practice the President’s power to use force unilaterally has greatly expanded over time. Key issues in the Obama and Trump administrations have been the expansive reliance on the Authorization for the Use of Military Force adopted after 9/11 and the use of force without explicit congressional authorization.
A. Allocation of War Powers
The Constitution vests Congress with the power to declare war and to fund and regulate the military,16 but it makes the President Commander in Chief.17 The Framers vested the fundamental choices about the use of military force to Congress because they believed that the most politically accountable branch of government ought to make such important decisions. Nonetheless, experience taught that, once the decision was made, there should be a single commander to lead the military. Over time, the balance of control over the use of force has shifted toward the President.
Although only Congress may declare war, under some circumstances the President has inherent power as Commander in Chief to use force without a declaration of war. In The Amy Warwick (The Prize Cases),18 the Supreme Court upheld President Lincoln’s initiation of a naval blockade against southern ports at the outset of the Civil War, reasoning that the President had inherent power to repel an invasion or suppress an insurrection. Subsequent presidents have used force without formal declarations of war, ranging from brief military incursions to large-scale conflicts. Courts have consistently rejected efforts to challenge the legality of presidential uses of force.19
In an effort to assert greater control over the use of military force, Congress enacted the War Powers Resolution in 1973, overriding President Nixon’s veto. Although it is denominated a “resolution,” the War Powers Resolution satisfied bicameralism and presentment requirements and has the same effect as a statute.20 In practice, the War Powers Resolution has had virtually no effect on the presidential use of force. It has never required the end of hostilities and has no applicability to many modern military actions such as missile or drone strikes.
B. Authorization for the Use of Military Force
Congress might authorize the use of force in various ways, including a formal declaration of war, a resolution of “Authorization for the Use of Military Force”...